Miessek v. Federal Government ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 TONNE L. MIESSEK, Case No. 1:22-cv-01021-SKO 10 Plaintiff, FINDINGS AND RECOMMENDATION 11 v. T FAO I D LUIS RM EI S TS O F OO BR E P YL CA OIN UT RI TF F O’S R DERS 12 AND LOCAL RULES AND FAILURE TO PROSECUTE 13 FEDERAL GOVERNMENT, (Docs. 3 & 4) 14 Defendant. TWENTY-ONE DAY DEADLINE 15 Clerk to Assign District Judge _____________________________________/ 16 17 Plaintiff Tonne L. Miessek, proceeding pro se, filed this civil action on August 15, 2022. 18 (Doc. 1.) Plaintiff also filed an application to proceed without the prepayment of fees, but the form 19 application was not complete. (See Doc. 2.) The application indicated that Plaintiff received money 20 from disability or workers compensation payments, but it did not state the amount received and what 21 Plaintiff expects to continue to receive. (See id.) It was also unclear whether Plaintiff owns any 22 real estate, stocks, bonds, securities, other financial instruments, automobiles, or any other thing of 23 value. (See id.) 24 On August 18, 2022, the Court issued an order denying without prejudice Plaintiff’s 25 application to proceed without the prepayment of fees and directing Plaintiff to either file an 26 amended application, completed and signed, or pay the $402.00 filing fee for this action, within 27 thirty days. (Doc. 3.) Plaintiff was cautioned that the failure to comply with the Court’s order would 28 1 result in a recommendation that this action be dismissed. (See id.) More than thirty days have 2 passed, and Plaintiff has failed to file an amended application or to pay the filing fee. 3 When served at Plaintiff’s address of record, the August 18, 2022, order was returned as 4 undeliverable on September 19, 2022. (See Docket.) Local Rule 183(b) provides that: 5 A party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail directed to a plaintiff in propria 6 persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails 7 to notify the Court and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice for failure to 8 prosecute. 9 L.R. 183(b). Although more than sixty-three days have passed since the order was returned as 10 undeliverable, Plaintiff has not contacted the Court to provide a current address, request an 11 extension, or to otherwise explain the lack of compliance with the order. 12 On November 29, 2022, an order issued for Plaintiff to show cause (“OSC”) within twenty- 13 one days why the action should not be dismissed for their failure to comply with this Court’s order 14 and Local Rules and for their failure to prosecute this case. (Doc. 4.) Plaintiff was again warned in 15 the OSC that the failure to comply with the Court’s orders would result in a recommendation to the 16 presiding district judge of the dismissal of this action. (Id. at 2–3.) Plaintiff has not yet filed any 17 response, and the time to do so has passed. 18 The Local Rules, corresponding with Fed. R. Civ. P. 11, provide, “[f]ailure of counsel or of 19 a party to comply with . . . any order of the Court may be grounds for the imposition by the Court 20 of any and all sanctions . . . within the inherent power of the Court.” Local Rule 110. See also 21 Local Rule 183(a). “District courts have inherent power to control their dockets,” and in exercising 22 that power, a court may impose sanctions, including dismissal of an action. Thompson v. Housing 23 Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with 24 prejudice, based on a party’s failure to prosecute an action or failure to obey a court order, or failure 25 to comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 26 (dismissal for failure to comply with an order requiring amendment of complaint); Malone v. U.S. 27 Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court 28 order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute 1 and to comply with local rules). 2 Based on Plaintiff’s failure to comply with, or otherwise respond to, the Court’s orders and 3 the Local Rules, there is no alternative but to dismiss the action. Accordingly, it is HEREBY 4 RECOMMENDED that this action be dismissed for Plaintiff’s failure to obey court orders and the 5 Local Rules and the failure to prosecute this action. 6 The Clerk of Court is DIRECTED to assign a District Judge to this action. 7 These Findings and Recommendation will be submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l)(B). Within twenty- 9 one (21) days after being served with these Findings and Recommendation, Plaintiff may file 10 written objections with the Court. The document should be captioned “Objections to Magistrate 11 Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file objections within 12 the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 13 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 The Court DIRECTS the Clerk to send a copy of this Order to Plaintiff at their address listed 15 on the docket for this matter. 16 IT IS SO ORDERED. 17 18 Dated: January 4, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28